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Pradeep Kumar Pathak v. State Of U.P. - CRIMINAL MISC. BAIL APPLICATION No. 16360 of 2006 [2006] RD-AH 14682 (29 August 2006)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Court no. 10

Criminal Misc. Bail Application No. 16360 of     2006

Pradeep Kumar  Pathak      Vs.     State of  U.P.


Hon'ble R.K.Rastogi,J

The applicant  Pradeep Kumar    has    applied for  bail in Case Crime No.  20 of 2006,  under section  8/20 N.D.P.S. Act , Police Station  Dubahar,  District  Ballia.

The prosecution   case  starts with  a F.I.R.  registered  at  police station  Dubahar on 1.4.06 at 11.30 P.M. on the basis of  recovery memo   prepared  by Siyaram  S.O.   of   that police station.  It was  stated  in the recovery memo  that on the aforesaid date  he  alongwith police  party  was on petrol duty  and he saw a person  coming from  the side of  Ballia  having a plastic  bag  and on seeing the police party  he  tried to run  away then he was apprehended  at  about 9.20 P.M.  and upon inquiry he told his name as  Pradeep Kumar  Pathak  son of  Sitaram Pathak r/o village  Nagwa P.S.  Dabhar Ballia and he further  stated that  he kept Ganja in his bag  and also  one country made pistol   of 303 bore with two live cartridges  of the same bore  and so  he  tried to run away . He  was offered to give search  before  the Magistrate/ gazetted officer  but he stated that  he was ready to  be searched  by the police  and upon search   about one and half kilogram   Ganja  was recovered  and  one country made pistol  of  303 bore  and two live cartridges were  also  recovered from his possession . For sample   100 gram  Ganja was  sealed  and he was arrested   and  the case was registered  against him.

The Present bail application is  only under section 8/20 N.D.P.S. Act . The applicant has alleged that he is innocent and he has  falsely been implicated  in this case and so he  should be granted bail . His learned counsel  submitted that  there is violation of  section 50 of N.D.P.S. Act  as search was not   done before  a gazetted officer or Magistrate. The position in regard to  applicability  section 50 of  N.D.P.S. Act  has been  finally settled by  the  Hon'ble Supreme Court. Referring to several rulings  on this point  their Lordships  made the following observations  on the point in para 6 of  its judgment  in the  case of State of Haryana  Vs. Ranbir  alias Rana : 2005(2) JIC 20 (SC):

"6. The question as regards  applicability  of Section 50 of the Act need not  detain us  for long. We may  notice  that in view of  conflict  in the opinions of  different benches as also differences of  opinion  between two Judges  of this Court in State of   Himachal Pradesh Vs.  Pawan Kumar JT 2004(8) SC 190; (2004) 7 SCC 735, the question was referred to a larger   Bench. A three- Judge Bench of this Court in State of Himachal Pradesh etc. V. Pawan Kumar,  2005(2) JIC 413 (SC): (2005)4 SCC 350, relying on or on the basis of a large  number of decisions and in  particular the decision  of the Constitution  Bench of this Court in State  of Punjab V. Baldev Singh, 1999 (2) JIC 421  (SC): (1999) 6 SCC 172, clearly  held that  Section 50 of  the Act  would  be applicable only in a  case of personal search of the accused  and not when  it is made in respect of some  baggage like a bag, article or container etc.  which the accused  at the relevant time was carrying."

It  is  thus clear that   the  requirement  of search  in   the presence of  a Magistrate or a Gazetter officer  is applicable  in those  cases  where the personal  search of the accused is taken  and   when   the search of   bag , article  or container etc.    of  the accused  is taken,  Section 50 of the N.D.P.S. Act  is not applicable  and  the search  shall not  become  invalid  on the ground that  it was not  made in  the presnce of  a Magistrate  or a Gazetted Officer.

The learned A.G.A. submitted that  the applicant has  got  criminal history  of 22 cases  and so bail should not be granted to him.

The applicant  has filed a supplementary  affidavit  in which he has asserted he has been acquitted  in  case Crime No.  198/02 under section 302 I.P.C. of  P.S. Kotwali , case crime no. 69/04( described  as 71/04 in Supplementary Affidavit) under sections 323/504/506 I.P.C.  P.S. Dubahar and   in case crime No. 287/01 ( described  as  282/01 in supplementary affidavit) under sections 323/504/506/307 I.P.C. P.S. Kotwali . It has been asserted  in  para 5 of the  supplementary affidavit  that  the remaining  offences are  minor  and  petty offences.  It has been stated in its para 4   that  the applicant is on bail  in  all the  remaining cases. However, a perusal of the  chart submitted by the  prosecution  reveals that the  applicant is    in Jail  in case crime No. 12/05 under section 307 I.P.C.  and  section 7 Criminal   Laws Amendment Act of  P.S. Dubahar and in case crime  no. 16/05 under section 2/3  U.P. Gangsters Act.  The allegation of the applicant  that  other pending cases  are minor is  also erroneous  because a perusal of the   chart reveals that  the case crime no. 283/99 of police station  Dubahar   against him is under sections 147,148,149,302 I.P.C.  and  in three other cases bearing  crimes no. 71/94, 289A/2000 and 12/05 of police station Dubahar  there is  charge   against him  under section 307 I.P.C. also . It was  contended by the  learned A.G.A.  that  in view of this criminal history  bail should not be  granted  to the  applicant.

The learned counsel for the applicant, at the last ,  cited before me a ruling of this Court in 'Prem Chand Vs. State of U.P.' 2004 (50) ACC 695. In this case  there was a recovery of  11 kgs. of Ganja which was below the commercial quantity and accused had been  in jail for the last six months, so he was ordered to be enlarged on bail.

It was submitted by the learned counsel for the applicant that taking into consideration the  above ruling,bail should be granted to the applicant.

The learned A.G.A. submitted that in this case the applicant was arrested on 1.4.2006 and period of six months has not been completed, so he is  not entitled to the benefit of this ruling at present.

Without expressing any opinion on the merits of the case, but taking into consideration the facts and circumstances pointed out above, I am of the  view that  the applicant is not entitled to bail at this stage, so his bail application is  dismissed.

However, it is to be seen that charge sheet in this case has been submitted on 13.5.2006, so I direct the trial court to complete the trial of this case  within a period of  three months from the date of receipt of certified copy of this order and if the trial is not completed within this period without any  fault of the accused, the accused-applicant may apply before the trial court  for grant of bail seeking  the benefit of  the aforesaid ruling of this Court  in the  case of Prem Chand  Vs. State of U.P. (Supra) and in that case trial court may  pass suitable order  on the bail application  of the  applicant.




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